The Constitution and laws of the United States do not recognize, but on the contrary exclude, any right of asylum as between the States and Territories of the Union. As has been seen, the obligation to surrender is absolute and extends to all offences made penal by the laws of the demanding State or Territory. Where a demand is preferred in accordance with law, the executive upon whom the requisition is made possesses no discretion. He cannot exact conditions. His duty is immediate and imperative. It was the obvious intention of the framers of the Constitution that State boundaries should not obstruct the administration of justice, and that each State should enjoy the same certainty in the prose'cution of those who fled from its justice as in the enforcement of its laws against offenders who remained within its jurisdiction. While, therefore, in prescribing the method of recovery, the existence of separate jurisdictions and distinct governmental organizations was recognized, it was ordained that the fugitive should be given up on being merely charged with crime, and not upon such proof of his criminality as has always been required by the government of the United States in international cases. Nor has the argument as to trial for political offences any place in the consideration of interstate rendition. For the Constitution expressly requires that the fugitive shall be given up when charged with treason. By the fourth section of the fourth article of the Constitution, the United States is bound to guarantee to every State in the Union a republican form of government. The clause requiring the rendition of fugitives charged with treason is also designed to secure that object. The result of the various constitutional provisions above noticed is that there is no right of asylum as between the States of the Union and no refuge for political offenders. Where then are we to find any ground for the implication that a fugitive

1 The "Interstate Extradition Conference" held in New York City in August, 1887, refused to recommend the adoption by Congress of a law to forbid demands or surrender for petty offences, on the ground that such an enactment would be in conflict with the provisions of the Constitution, which required rendition for all offences without regard to their gravity.

whose rendition was demanded on one charge cannot be tried on another?

In opposition to this it may be said that by discarding the limitation as to trial, we permit a person to be prosecuted for an offence in respect to which he did not flee from justice, and for which therefore his rendition could not have been required. This is true, and it actually occurred in Ham v. The State; but it does not answer the argument against the existence of the limitation. That which, in general phrase, is commonly called the right of asylum, should more accurately be described as the right to grant asylum. It does not mean that it is the right of the individual to object to being delivered up, but that the nation in whose jursidiction he is found may decline to surrender him. This is what is meant by the right of asylum. It is the right of the nation, not of the individual; and if the nation either docs not or cannot claim it, he cannot be heard to assert it. This principle was clearly and powerfully stated by Mr. Justice Miller, delivering the opinion of the Supreme Court of the United States in Ker v. Illinois. 2

From the right to refuse surrender flows the right to affix conditions to surrender. This being so, the surrender, whether granted in pursuance of a prior conventional engagement or on grounds of comity in the particular case, is regarded in the light of a national concession, for the sole. purpose specified in the proceedings. When, therefore, the offender is delivered up for a definite purpose, it is implied that he was delivered up for that purpose and for no other. Such was the ground taken by the Supreme Court in United States v. Rauscher, decided on the same day as the case of Ker v. Illinois. It is true that in the case of Rauscher the prisoner was permitted to plead his exemption; but this was upon the ground that the treaty, under which the exemption was claimed, was under the Constitution of the United States the law of the land, and as such conferred upon the prisoner a right which the courts were bound to take cogni

1 Supra, § 643.

3

119 U. S. 406. Supra, § 165.

2 119 U. S. 436.

1

zance of and enforce. But, if there is no right to grant asylum, and the duty to comply with the demand is peremptory and unconditional, from whence is it to be legally implied that the offender was delivered up upon the condition that he should be tried only for the crime specified in the demand? It has been suggested by a writer of such eminent authority as Judge Cooley that, unless we adopt the doctrine that the fugitive cannot be tried for any offence other than that for which he was surrendered, the constitutional clause may be perverted for the purpose of bringing persons within the jurisdiction in order to serve them with civil process. In respect, however, to this argument, may it not be said that the remedy should only be co-extensive with the evil sought to be prevented? It has been decided in numerous cases that the process of interstate rendition cannot be abused for the promotion of civil actions; and the courts in so deciding have not failed to note the distinction between civil suits and criminal prosecutions.2 But, in any event, the question of fraudulent use of process, upon which the case of Cannon 3 turned, may for the reasons stated in that case be thought to present several considerations not applicable to the simple trial of a person for an offence other than that for which he was rendered up.

2. Rendition to a third State.

§ 645. Case of Hope. A class of cases which have been held to fall within the inhibition of trial for any offence other than that for which the fugitive was delivered up, is that in which a State is asked to surrender a person who, having been brought within its jurisdiction as a fugitive from justice, has answered its demands, but has not had an opportunity to "depart in peace" thereafter. This question was decided in November, 1889, in the case of James Hope, the bank burglar, whom Governor Hill, of New York, refused to deliver up on a requisition of the governor of Dela

1 Int. Rev., vol. iii. (1876) p. 438. See also article by same writer, Princeton Rev., 1879, p. 176.

ware. Hope escaped from the latter State while serving a long sentence of imprisonment on a conviction of burglary.1 He was subsequently found in California, from whence he was delivered up to New York on a charge of crime committed in that State. On that charge he was convicted and sentenced to imprisonment in the Auburn prison. When the period of his sentence was about to expire, a requisition for his rendition was made by the governor of Delaware, in order that he might be brought back to serve out the remainder of his sentence in that State. In compliance with this demand, a warrant was issued for his arrest, to be executed immediately upon his discharge from the Auburn prison. When in due time the warrant was executed, an application was made for its revocation, on the ground, among others, that he could not be delivered up to the authorities of Delaware until he had had an opportunity to return to the jurisdiction of the State of California, from which he was taken. Governor Hill very properly held that he was liable to be delivered up as a convict, notwithstanding that the nominal term of his sentence in Delaware had expired, but revoked the warrant on the ground that as the State of New York had obtained possession of him to answer a criminal charge, its jurisdiction over him was confined to trying and punishing him on that charge. The governor based his decision chiefly on the case of Rauscher, in which, as has been seen, it was held that a person delivered up to the United States by the government of Great Britain, to be tried for a specified offence, could not be detained or tried for another, until he had had an opportunity to return to the jurisdiction of the surrendering government. The treaty under which the extradition of the offender was obtained did not expressly inhibit his trial for another offence. But the court held that such an inhibition was to be implied; for the reason that in strict law every independent nation has the right to grant asylum to fugitives from justice, and where it agrees to forego that right it is to be understood to do so only for the purpose specified. In respect to all other matters, the

1 Case of Hope, 7 N. Y. Crim. Rep. 406; 40 Alb. L. J. 441.

fugitive is regarded as being still in the enjoyment of his asylum within the jurisdiction of the surrendering government. It was upon this ground of law, and not upon any consideration of good faith except as involved in the observance of the law, that the decision of the court rested.

The decision of Governor Hill in the case of Hope was followed in May, 1890, by Judge Macomber, of the supreme court of the State of New York at Rochester, in the case of Owen Daly, who was brought on rendition process from Ohio on a charge of stealing a horse and buggy. Having been acquitted on this charge, he was immediately rearrested on a charge of stealing a watch and other valuables prior to his flight. Judge Macomber decided upon the strength of the case of Hope that he could not be held to answer for an offence other than that for which he was delivered up, and discharged him from custody.1

The de

§ 646. Reasons why Rendition should be granted. cision in the case of Hope,2 deduced from the rule enforced in United States v. Rauscher and other international cases,3 obviously involves the application of the doctrine of asylum, which, it has been contended, is wholly foreign from the subject of interstate rendition. Unless, when the State of New York demanded the fugitive from California, the governor of the latter State had the right to accord asylum and hence to dictate terms of surrender, upon what basis can it be argued that the rendition was a conditional concession? Not only would such an argument appear to be unsound in logic, but it has also been rejected in principle by the Supreme Court of the United States in Mahon v. Justice,5 in which it was held that the governor of a State had no legal right to demand from the governor of another State the return of a person who had been wrongfully taken from the jurisdiction of the former by an agent of the latter. But,

1 Rochester (N. Y.) Times, Oct. 1 and 2, 1889; May 8 and 9, 1890. I desire to express my thanks to Mr. George A. Benton, district attorney of Monroe County, N. Y., for information in regard to the case of Daly.

2 Supra, § 645.

4 Supra, § 644.

3 Supra, §§ 159-165, 644.

5

Supra, § 644.